negligence Flashcards

Question

breach of duty comparator: Adult defendant and skilled activity

Answer 1

Standard of care expected of a D who is carrying out a skilled activity, holding himself out as having a skill or learning a skill is the objective standard of the ordinary person exercising and professing to have that special skill, i.e., following a reasonable body of professional practice. - Bolam v Friern Hospital Management Committee Nettleship v Weston (learner driver) – someone learning skill help to standard of reasonably competent skilled person.

Answer 2

He should exercise the ordinary skill of an ordinary man exercising that particular art – doesn’t need to possess the highest expert skill at the risk of being found negligence. Objective standard Reasonable care, not highest possible care Judges should not choose between two competing responsible bodies of opinion (Maynard v West Midlands Regional Health Authority) A person doing a skilled activity is subject to a duty to take reasonable steps to keep up to date (Baker v Quantum Clothing Ltd)

Answer 3

Practice has to be logically defensible - Needs to be a competent professional opinion with a logical basis, and a weighing up of risks and benefits. If not (rare) – and the professional opinion does not stand up to logical analysis, the court may not regard that as a ‘proper’ body of responsible opinion – logically defensible. Common practice: Where a defendant has been following common practice, the court can look at the practice and decide for itself whether the practice was logically defensible (Bolitho). Example: where common practice has not kept up to date, and should be changed; there might still be a breach of duty: Edward Wong Finance Co. Ltd v Johnson, Stokes and Master

Answer 4

Glasgow Corporation v Muir – degree of care required varies directly with the risk involved Factors affecting the standard of care – foreseeable harm, likelihood of foreseeable harm, seriousness of foreseeable harm, practicability of precautions, social utility, emergency action

Answer 5

Harm must be reasonably foreseeable for there to a duty of care and there to be a breach of that duty (e.g., neighbour principle) and the damage to be recoverable in ‘causation in law’ Standard of foresight, not hindsight – Roe v Minister of Health Yes or no question

Answer 6

The greater the likelihood of foreseeable harm, the greater the care expected of a reasonable person to avoid the harm. Bolton v Stone – low likelihood of ball going beyond boundary wall and even lower likelihood of injury happening as a result so much care didn’t need to be taken. “there must be sufficient probability to lead a reasonable man to anticipate it”. Vulnerabilities - D. will generally owe a higher standard of care if D. ought reasonably to have foreseen that a class of people have an increased likelihood of harm (Haley v London Electricity Board – blind man fell in hole because hazard was not suitable for blind people – D should have had blind people in mind specially because many were left blind after ww1) D’s knowledge of neighbour’s vulnerability - D. will generally owe a higher standard of care if D. actually knows that C. belongs to a class of people with an increased likelihood of harm (and C. belongs to that class), e.g., Yachuk v Oliver Blais (1949) – selling petrol to children D. will generally owe a higher standard of care if D. actually knows C. to be more likely to be harmed from D.’s conduct, (and C. belongs to that class) e.g., Walker v Northumberland County Council – workplace became aware of C’s vulnerability to work-related stress and didn’t take reasonable care to prevent it. Held accountable for incident after they became aware of C’s vulnerability, not incident before.

Answer 7

The greater the seriousness of foreseeable harm, the greater the care expected of a reasonable person to avoid the harm - Beckett v Newalls Insulation Co. Ltd Same rules as likelihood apply for those vulnerabilities. D. will generally owe a higher standard of care if D: ought reasonably to have foreseen that a class of people have an increased seriousness of foreseeable harm (and C. belongs to that class) / actually knows that any foreseeable harm that C. sustains from D.’s conduct is likely to be more serious. Paris v Stepney Borough Council - D. will generally owe a higher standard of care if D actually knows that any foreseeable harm that C. sustains from D.’s conduct is likely to be more serious. Mr Paris had one eye – his other eye being injured is of very high seriousness as it will cause him to become fully blind – higher care expected.

Answer 8

It is reasonable to take reasonable precautions to reduce the risk of foreseeable harm to a reasonable level. Factors relevant to considering whether precautions would be reasonable – cost, ease, timing, availability, effectiveness, social utility - Cost The higher the cost of precautions compared to the risk of foreseeable harm, the less reasonable it is to take them. Paris v Stepney Borough Council (goggles – low cost), Bolton v Stone (high cost), Al-Kandari v J R Brown and Co. (1953) (warning - low cost), Latimer v AEC Ltd (factory closure – high cost – closing factory would cause huge social cost and commercial cost – workers wouldn’t be paid) The court will NOT usually take into account D.’s resources. BUT sometimes the court MIGHT take into account whether it is a public defendant providing a PUBLIC SERVICE … Tomlinson v Congleton Borough Council – young man jumped into lake in park and sustained spinal in injury - 'A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as it the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger.

Answer 9

The greater the desirability of the defendant’s activity in society, the more cautious the court should be about finding the defendant to have breached the duty. Social utility = ‘the social value of the activity which gives rise to the risk’ (Tomlinson v Congleton Borough Council) Social utility at common law – impact on national life, saving life and limb, community benefit, respecting free will, avoiding a ‘grey and dull’ safety regime, emergency action Impact on national life - Daborn v Bath Tramways – ‘The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk’. Saving life and limb - Watt v Hertfordshire County Council – fire service justified in not securing jack unto vehicle because more important to get to accident quickly to save woman’s life. Benefit to the community - Tomlinson v Congleton Borough Council – beaches shouldn’t be destroyed because people visit beaches Respecting free will – Tomlinson – dumb people shouldn’t ruin it for everyone else ‘Grey and dull’ safety regime – Tomlinson – people should be allowed to enjoy themselves ‘Defensive practice’ – Roe v Ministry of Health – if we imposed liability on hospitals for everything that goes wrong, initiatives would be stifled – disservice to society Statute – Compensation Act 2006, s.1. Social Action, Responsibility and Heroism Act 2015, ss.1-4 – doesn’t change common law, just says the same thing

Answer 10

Where there is an emergency, the standard expected of the defendant is of a reasonable person placed in the defendant’s position of dealing with the emergency Less care is expected of a defendant reacting in an emergency: Jones v Boyce (escaping a negligently driven vehicle) BUT is just one factor, not a trump card, and the defendant can still be held to be negligent: Griffin v Mersey Regional Ambulance Service (ambulance crossing red light – C:D 60%:40%)

Answer 11

The ‘but for’ test is used to establish factual causation. C. must show that, but for D.’s breach of duty, C. would probably have avoided the damage of which C. now complains. Did D.’s breach of duty make a difference to the harm which C. sustained? Structure – how had D breaches his duty to C? What harm has C sustained? What harm would C have sustained if D had not breached his duty? If step 3 is different from step 2, the but for test is met.

Answer 12

Cork v Kirby Maclean Limited – C had epilepsy, didn’t tell workplace, worked on platform that didn’t correspond with regulations, fell. But for test met but since C’s conduct contributed to his death, in the defence stage C’s claim was reduced – defence of contributory negligence Barnett v Chelsea and Kensington Hospital Management Committee - The evidence was that C. would have died even with any medical treatment that the hospital would have given. The breach was NOT a factual cause of C.’s death. McWilliams v Sir William Arrol & Co. Ltd (employer’s liability) - if a harness had been provided, it was reasonable to infer that C. would not have worn it (and so would have suffered the same injury regardless of D.’s breach of duty Drawbacks: Meadows v Khan - but for test inadequate in cases where there is more than one wrongdoer and more than one cause for the harm

Answer 13

Meadows v Khan - ‘is there a sufficient nexus between the loss and the subject matter of the defendant’s duty’. (C asked hospital to test her for haemophilia gene because she didn’t want to pass it unto her child. Hospital didn’t do tests properly so didn’t tell her she was a carrier. C had child who was born with haemophilia and autism. C’s claim for costs of bringing up child with both conditions. Although it’s true she would not have had a child if the hospital had done their job properly (‘but for’ test met), child with autism and hospital’s failure to properly test her was not of sufficient closeness (can’t test for autism before pregnancy). )

Answer 14

Can the claimant establish that the defendant’s breach of duty is the legal cause of the actionable harm that the claimant has sustained? There are 2 aspects to this: o ‘Remoteness’: A claimant is unable to recover damages which are too 'remote' / regarded as not being legally caused by the defendant's breach of duty o ‘Intervening acts’: Has there been an intervening act between the defendant’s breach of duty and the harm sustained by the claimant that has broken the chain of causation so that the defendant’s breach of duty is not regarded as being the legal cause of the harm to the claimant?

Answer 15

o Overseas Tankship (UK) Limited v Morts Dock & Engineering Co. (The Wagon Mound (No.1)) – reasonable foresight, not hindsight. Not fair for someone who does a negligent act with some trivial foreseeable damage to be held liable for all consequences that follow however unforeseeable just because it was a “direct” result of their act. o Spencer v Wincanton Logistics Ltd – reasonable foreseeability is to be judged as at the time of the breach of duty; by the standard of the reasonable [comparator]; and by reference to a hypothetical, rather than actual, victim

Answer 16

 Type or kind of harm must be reasonably foreseeable  D liable even if C's damage happens in a way that is not reasonably foreseeable  D remains liable even if damage to C is greater than that reasonably foreseeable  D must take C as he finds him  If physical harm is reasonably foreseeable, then so is psychiatric harm  D is not liable for damage caused in the chain of causation

Answer 17

o Wider definition [e.g., ‘physical or psychiatric injury of any kind’) – usually taken  Court usually adopts a wider definition - Bradford v Robinson Rentals Ltd – C had frostbite. Held ‘cold-related injury’ (broad enough to include frostbite) was foreseeable.  Jolley v Sutton London Borough Council - what needs to be foreseen is the general type of injury and not the precise injury which occurred. o Narrow definition [e.g., ‘complex comminated fractured femur in right leg.’]  Tremain v Pike - Weil’s Disease different from reasonably foreseeable damage from rats

Answer 18

o Hughes v Lord Advocate – paraffin lamb burnt boy in unexpected way – didn’t matter because it was foreseeable that it could cause burn o Jolley v Sutton London Borough Council o Tremain v Pike – narrow approach – unusual

Answer 19

Hughes v Lord Advocate – didn’t matter that a force of an explosion caused more severe burns than burns from kicking over a lamp and burning foot which was foreseeable

Answer 20

o Eggshell skull principle: If D’s harm is more serious than reasonably foreseeable to D because of C’s pre-existing vulnerability, D is still liable for that harm. o Smith v Leech, Brain & Co. – But for test met in case. C had potentially cancerous cells that were triggered into becoming malignant cancer as a result of the burns. Eggshell principle applied – D liable. the value of the claim was discounted to take into account the CHANCE that C. would have developed cancer in any event IN THE FUTURE] – AT THE DAMAGES CALCULATION STAGE, RATHER THAN AT THE CAUSATION STAGE o Eggshell principle extended to characteristics other than the claimant’s physical vulnerability to harm:  Page v Smith – psychiatric injury claims (but not secondary victims)  Lagden v O’Connor – financial loss claims - D should bear the consequences if it was reasonably foreseeable that C.’s losses are greater because of C.’s financial situation

Answer 21

o Principles of remoteness and principles of intervening acts are separate o Types of intervening acts – natural act, conduct of the claimant, acts of a third party & negligent / carelessness, criminal wrong doing, negligent/ carelessness

Answer 22

o Act of nature may breach chain, if it was not reasonably foreseeable – VERY RARE o Carslogie Steamship Co. v Royal Norwegian Government - D who caused damage to the ship could not be expected to foresee further damage as a result of an exceptionally heavy storm

Answer 23

o Chain can be broken by a ‘highly unreasonable act’ of C, which is not reasonably foreseeable to D at the time of D’s breach of duty. o McKew v Holland – C got injured at work – employers admitted liability. Left leg in weakened state. Went down steep stairs without handrail – leg gave way – C jumped 10 stairs to bottom of staircase – further injuries. Chain broken by C.’s unreasonable conduct, not in jumping, but in putting himself in that position. o Wieland v Cyril Lord Carpets Limited – Bus accident C sustained neck injury – soft cervical collar fitted – difficult to adjust to using bifocal glasses with collar – fell down – sustained injury to ankles. C’s conduct was not unreasonable. Foreseeable that one injury may be the cause of another injury as they have to adjust to living with their injury. Eggshell principle also applied because she wore glasses which was characteristic of her. C was going about her daily didn’t do anything unreasonable.

Answer 24

o Spencer v Wincanton Logistics Limited – where you draw the line depends on individual facts and different degrees of sympathy from the court o Contributory negligence – Sayers v Harlow Urban District Council - C tried to escape toilet by stepping unto toilet roll holder and fell – held this was reasonably foreseeable BUT contributory negligence applied because standing on a toilet roll holder is not taking reasonable care for your own safety. o Clay v TUI UK Limited – Had Clay behaved so unreasonably in attempting to jump from one balcony to another because he was locked in because of defective lock and his kids were unaccompanied. Split decision – majority said he behaved unreasonably. o Rescue attempts usually not an intervening act because a rescue attempt will usually be within the foreseeable risk created by D (Haynes v Harwood) and it is usually fairer to find that the injury to C is not too remote from D’s breach (Crossley v Rawlinson)

Answer 25

You'll get marks in assessment if you identified principle, then explained how McKew went in one direction and Wieland went in another. Then you'd get further marks if you explained which way the case you get in the exam will go.

Answer 26

o Is the new intervening cause within the foreseeable risk created by D.? Yes, the chain of causation will not be broken. No, the chain of causation will be broken, and D will not be liable for future losses caused by the intervening act. o Mitchell v Glasgow City Council o Knightley v Johns – some interventions are more likely to break the chain than others. D1 causes accident in tunnel – C is instructed to ride along the flow of traffic in the tunnel – C collides with D2. Is D1 liable for C’s collision with D2? Is the second accident a natural and probable consequence of the first? No. o Robinson v Chief Constable of West Yorkshire Police – suspect resisting a police arrest does not break chain of causation – very act police are hired to guard against.

Answer 27

o Home office v Dorset - ^ same idea as Robinson o Lamb v Camden London Borough Council – damage caused by squatters did break the chain of causation o Stansbie v Troman – decorator left in charge of property - theft did not break chain of causation

Answer 28

o Whether D is liable for harm sustained by C after getting medical treatment for initial harm caused by, depends on whether the treatment is within or outside the foreseeable risk created by D at the time of the breach of duty o Robinson v Post Office – treatment by 3P was within the scope of D’s duty – no intervening act. Doctor’s act didn’t make any difference to the outcome for the patient so D couldn’t claim doctor’s act was intervening. Reasonably foreseeable that C would get treatment for leg injury. Injury from anti-tetanus injection same kind or type of injury as physical injury to leg caused by D. (Wagon Mound). Eggshell skull rule applied (Smith v Leech, Brain). D. liable to C. even though the extent of the same kind of injury is greater than that which should have been foreseen (Hughes v Lord Advocate). o Rahman v Arearose Ltd – treatment by 3p was within the scope of D’s duty (but D and 3P liable) - D1: 25%, D2 (doctor): 75% o Webb v Barclays Bank plc and Portsmouth Hospitals NHS Trust: D1 liable 60% (for accident 1); D2 liable 40% (for negligent amputation)

negligence Flashcards

(53 cards)